Immigration and Security Post-Sept. 11

The terrorist attacks of Sept. 11 will leave an important mark on the immigration history of the United States. After all, every single one of the hijackers was foreign-born. Speculation was rife, therefore, that the U.S. was about to experience a new high-water mark in anti-immigrant attitude. Policies leading to a moratorium on immigration, or at least a fundamental re-examination of the numbers and categories of immigrants that are admitted to the United States, were thought to become inevitable.

However, the expected high-water mark of generalized anti-immigrant reaction did not materialize. Indeed, no legislation limiting immigration or eliminating categories of immigrants is being seriously debated. Instead, the debate involving immigration and immigrants has been dominated by the set of government actions taken to prevent and deter terrorism at home.

In its war on terrorism, civil rights advocates argue, the government may be going too far, and unnecessarily violating the rights of immigrants. Foreign visitors and non-naturalized immigrants are the main focus of its investigations; and yet, critics argue, they are the most vulnerable populations in our country. Many, therefore, believe that the country is witnessing one of the biggest civil rights challenges in a generation.

Measures Since Sept. 11

The current debate on the civil liberties of immigrants started with the passage by Congress of the U.S. Patriot Act (Pub.L. No. 107-56). This legislation, enacted with dispatch and near unanimous support, significantly enhanced the law enforcement, surveillance, and detention powers of the government with respect to noncitizens.

Perhaps more far-reaching than congressional action are the decisions and enforcement policies of the Bush administration since Sept. 11 (PDF file). Most of these have been issued by the Department of Justice, which has jurisdiction over immigration enforcement. Its critics maintain that these policies and actions have been adopted without congressional involvement and without the normal process of rule-making, which includes public comment.

The most contentious of these administrative policies and actions include:

The arrest and prolonged detention of over 1,250 men since Sept. 11, mostly for violations of immigration law. The U.S. attorney general has declined to reveal who these people are, what their immigration status is, where they are being detained, the charges against them, or whether they are represented by counsel.

Secret immigration hearings, to which relatives of detainees or the press are denied access. The government can oppose release of prisoners on bond, even when an immigration judge has allowed such release.

Monitoring of communication between a lawyer and a client, even in those cases when someone is detained, but not charged.

Detention of over two dozen people under the Material Witness Statute -- a rarely used exception to criminal procedure -- that allows the indefinite detention of people who have not been charged with a crime.

FBI notices to over 8,000 Middle Eastern or Muslim men in the age group 18-33 currently in the U.S. as temporary visitors, asking them to report for questioning.

Initiation of a program by the Department of Justice to exclusively target for apprehension Middle Eastern nationals who have failed to depart after their final orders of deportation.

Planned registration (fingerprint and photograph) by the Department of Justice of visiting nationals from specific Middle Eastern countries at the time of entry and at key intervals after their arrival.

Dimensions of the Debate

Analysts of all stripes agree that the exercise of administrative power on this broad a scale is unprecedented. Where they disagree is on the efficacy, the wisdom, and the long-term consequences of these actions.

In the legal, civil rights, and journalism communities, it is the cumulative effect of these actions that has raised questions about their impact on established fundamental rights: on the freedom of the press, right to counsel, right to open trials, right to release on bond, and protection against indefinite detention. These actions have also led to accusations of racial/ethnic profiling and discriminatory selective enforcement of laws against Arabs and Muslims.

Others, however, defend the administration's actions and argue that these are necessary to safeguard U.S. citizens and the "homeland" against terrorism. They note that the focus of post-Sept. 11 investigations has been on al-Qaeda supporters; that the attorney general's commitment to use all legal means to protect the nation's security is justified by the circumstances; and that giving special investigative attention to young Arab and Muslim males is common sense. The strong and sustained popular opinion in support of these enforcement actions has bolstered the political legitimacy of their position. Proponents of this position defend it on the basis of values, maintaining that the most important societal value is national preservation and the attendant right to self-defense.

Critics of the administration believe that its enforcement policies have specifically targeted Muslims and Arabs in the United States. This, they believe, leads to legally and morally indefensible "profiling" of these communities. Some advocates of these groups agree with the argument that Sept. 11 has created a special security situation that may allow adding an ethnic or racial component to the "profiles" by which people are screened at places like airports. However, extending that approach to civil society at large is very troubling to them.

Profiling, they argue, is ineffective because it casts too wide a net around a community, all but a few of whose members are innocent, without providing any information about individual behavior. Many law enforcement professionals view profiling as a crude and, ultimately, inadequate substitute for behavior-based enforcement and effective intelligence gathering. They also maintain that it leads to less rigorous scrutiny of individuals who may be dangerous but do not fit the profile. Indeed, critics say, profiling can give a false sense of security, pointing out that it would not catch Oklahoma City bomber Tim McVeigh, American Taliban fighter John Walker Lind, or al-Qaeda recruit Jose Padilla. Similarly, they point to the growing speculation in the law enforcement community that the person responsible for the anthrax mailings of last fall was a trusted U.S. citizen with security clearance.

Critics of profiling further believe that the practice, in addition to being ineffective, violates the Constitution because it targets and discriminates against individuals simply on the basis of religion or national origin instead of their conduct or behavior. In the process, they warn, immigrant communities become stigmatized, intimidated, and alienated, making their members less eager to cooperate with law enforcement agencies.

Many national security experts point to a number of policy options that will more effectively respond to terrorist threats -- policies that can be implemented without excessive executive powers and with minimal compromises on important civil liberties. Their recommendations range from reinforced cockpit doors and improved luggage matching protocols to a fundamental review of our country's intelligence infrastructure, better coordination of intelligence gathering, more focus on monitoring the tools of terrorism rather than people, better use of technology, improved training of screeners, and enhanced recruitment of translators and informants.

Elusive Consensus

Resolution of these complex legal, social, and security issues will not be easy. On one hand, there is broad recognition that extraordinary challenges require extraordinary responses. On the other hand, some U.S. analysts argue that history teaches that it is precisely in such extraordinary times that a true commitment to basic principles and values is most important.

Consensus on the course of action that best serves long-term U.S. interests will remain elusive. Those concerned with threats of future terrorist attacks are likely to emphasize the primacy of heightened security measures. Those concerned primarily with the civil liberties of members of U.S. immigrant and minority communities, however, will continue to contend that it is the rule of law that constitutes the defining principle of our democracy. They note, furthermore, that the nation's interests will not be promoted by stigmatizing entire communities. Rather, they believe that the strength of the United States will be reinforced by ensuring that these communities are and continue to be a core part of the country, and remain protected by shared civic values.